With almost prescient timing, the Jersey Employment and Discrimination Tribunal has published a judgment today dealing with the dismissal of an employee for refusing to wear a face mask / covering. The States of Jersey announced just last week that masks were once again recommended for indoor settings in Jersey.
Pallot v Jersey Heritage Trust involved one of the drivers of the DUCK vehicles that transports visitors over to Elizabeth Castle. Mr Pallot claimed that wearing a mask made him anxious, and that therefore it would be dangerous for him to wear a mask and drive the DUCK. There was limited medical evidence to support the anxiety, and no indication of how long it would last.
Mr Pallot had less than one year's continuous service, so to be able to bring an unfair dismissal claim he needed to show that his dismissal was an act of discrimination.
At the relevant time there was an order in place that required the occupier of a workplace to ensure that workers there wore face coverings in the presence of visitors. The Trust's position was it was entitled to dismiss Mr Pallot as otherwise it would have been in breach of this order. Similarly, this was not an act of discrimination as the Discrimination (Jersey) Law 2013 contains a saving provision: "no act of discrimination is committed where such discrimination “is done necessarily for the purpose of complying with [any enactment or any associated condition or requirement]."
The Tribunal carefully reviewed the circumstances and concluded:
- The Trust was entitled to dismiss Mr Pallot for refusing to wear a mask as otherwise the Trust would have been in breach of the face coverings order.
- Requiring Mr Pallot to wear a mask and dismissing him for refusing to do so was not an act of discrimination. There was a specific exemption in relation to steps necessary to comply with a relevant law or act.
- In any event, dismissal was a proportionate step to ensure compliance with the face covering order, which in itself was a legitimate aim. So had there been an act of discrimination it would have been justified.
It is worth remembering that at the time of the dismissal face masks were mandatory, which is not currently the position in Jersey. So the exemption the Trust were able to rely upon is unlikely to apply at the moment. However, businesses that have a legitimate reason for their staff to wear face masks may be able to justify this requirement. We recommend taking legal advice before doing so to be sure you are within the terms of the law.
Please contact me (Daniel.Read@walkersglobal.com) or Jenny (Jenny.Brunton@walkersglobal.com) if you would like more information.
It was a condition of the Order that all employees dealing with customers must wear a face covering. The Trust was bound by the Order and in complying with it did not commit any act of discrimination.